Brett Kavanaugh will be our next Supreme Court justice for all the wrong reasons

By The Times Editorial Board

Sep 07, 2018 | 4:10 AM

Brett Kavanaugh during his confirmation hearing to the Supreme Court in Washington on September 5. (Michael Reynolds / EPA/Shutterstock)

On Thursday, Judge Brett Kavanaugh completed two days of answering questions from the Senate Judiciary Committee that is considering his nomination to the Supreme Court. In some other reality, the Los Angeles Times editorial board would be struggling to reconcile our profound concern about how Kavanaugh might move a divided court further to the right with our longstanding view that presidents are entitled to considerable deference from the Senate, so long as their nominees to the court are well qualified and within the broad mainstream of legal thought.

But in the current political environment, such agonizing is beside the point.

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Kavanaugh’s confirmation is a foregone conclusion, not because of his qualifications or the commitments he made to respect precedent and safeguard judicial independence. We earnestly hope that he meant it when he assured Sen. Dianne Feinstein (D-Calif.) that he not only recognizes that Roe vs. Wade “has been reaffirmed many times over the past 45 years,” but also that he is aware of the real-world implications of overruling that decision. (“I don’t live in a bubble,” he said.) Yet these and other assurances Kavanaugh offered aren’t the reason he is headed to the Supreme Court.

The question isn’t whether the selection of Supreme Court justices should be rescued from excessive partisanship; it’s how that might be accomplished.

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He will be filling the seat vacated by retired Justice Anthony Kennedy because he is the conservative nominee of a Republican president (albeit an unorthodox one) and the Senate is controlled by Republicans who no longer need to worry about the wishes of the minority party.

Despite Kavanaugh’s strong credentials, he likely will be opposed by the overwhelming majority of Democratic senators, just as Trump’s first nominee, Neil Gorsuch, was. Some of those Democrats who vote no, we suspect, will do so even though they privately believe Kavanaugh deserves to be confirmed.

It’s easy to cite explanations for the poisonous partisanship that has infected the Kavanaugh confirmation process: Senate Democrats remain rightly outraged by Republicans’ refusal in 2016 to provide even a hearing for President Obama’s highly qualified nominee, Merrick Garland. Senate Republicans added insult to that injury by fast-tracking Kavanaugh’s hearings before the National Archives could deliver all of the documents that Democrats wanted to inspect from the nominee’s service in the George W. Bush administration. They were determined to put Kavanaugh on the court in time for the start of its next session on Oct. 1 — and before the midterm elections.

But regardless of how we got here, the fact is that judicial confirmations — especially for the Supreme Court — have become alarmingly more partisan in recent years.

Kennedy was confirmed by a vote of 97 to 0 in 1988. Justice Ruth Bader Ginsburg was confirmed 96 to 3 in 1993. Flash forward to 2005, when John G. Roberts, like Kavanaugh a federal appeals court judge rated “well qualified” by the American Bar Assn., was confirmed 78 to 22, with half of Democratic senators voting against him. Partisan polarization in voting became even more pronounced in subsequent nominations. Forty Democratic senators voted against President George W. Bush’s nomination of Samuel A. Alito Jr. in 2006. More than 30 Republican senators voted against Obama’s two nominees, Sonia Sotomayor and Elena Kagan.

Ginsburg expressed the hope this year that “one fine day, Congress will return to the bipartisan spirit that prevailed for my nomination.” That also has been our position. We long have argued that, even though presidents can be expected to nominate justices who share their general approach to the law, the Senate in considering those nominees should place the emphasis on legal qualifications and judicial temperament. In that way, the court can remain above politics even if individual justices bring different philosophies to the bench as the White House changes hands.

But we’re compelled to acknowledge that the bitter politicization of the confirmation process has made that argument sound quaint to many ears. Republican obstruction of the Garland nomination grossly violated the norm that a president has the right to fill a vacancy on the court that occurs during his term. Then Senate Republicans nixed the filibuster for Supreme Court nominations in order to secure Gorsuch’s confirmation, taking a cue from Senate Democrats who had abolished the filibuster in 2013 for lower-court judicial nominations to overcome Republican obstruction of Obama’s nominees. With no filibuster, the minority party in Congress has virtually no power in the confirmation process.

If this is the new world, some liberals argue, why shouldn’t we play by its rules? According to this view, Democrats who worry that well-qualified Republican nominees such as Kavanaugh would move the court to the right on abortion, voting rights and affirmative action should feel free to vote against him (and without trumping up other rationales for their opposition).

It’s a beguiling idea. But it solves nothing. For one thing, it legitimizes efforts by Republicans to oppose qualified nominees put forward by Democratic presidents. More to the point, as the Kavanaugh nomination shows, it won’t succeed when Republicans hold the majority.

Most important, blurring the distinction between judges and politicians would undermine respect for the Supreme Court, and for its decisions, including those that vindicate individual rights.

The question isn’t whether the selection of Supreme Court justices should be rescued from excessive partisanship; it’s how that might be accomplished. Although in the past we have supported abolition of the filibuster, restoring it for Supreme Court nominations might be a way to encourage bipartisan consensus and to prod presidents to nominate broadly acceptable candidates. It’s also worth considering whether Supreme Court justices should be appointed not for life but for lengthy fixed terms, which would lower the political stakes in any individual appointment and discourage justices from hanging on to office in the hopes of being able to retire when a president of the same party is elected.

Kavanaugh seems certain to join the pinnacle of the American legal profession, but it will be an achievement tainted by acrimony and accusations of unfairness. There must be a better way.